114 P. 143 | Utah | 1911
Lead Opinion
The plaintiff filed an original application wherein he asked this court to issue an alternative writ of mandate requiring Hon. W. W. Maughan, as district judge of the District Court of Box Elder County, to reinstate and try a certain action dismissed by him on an appeal from the Justice Court of Box Elder Precinct in Box Elder County, or to show cause why he refuses to do so. An alternative writ was duly issued, and the judge appeared in this court and made answer thereto.
The material facts are substantially as follows: The plaintiff herein in January, 1910, commenced an action before a justice of the peace of Box Elder Precinct in Box Elder County, Utah, against certain railroad companies to recover the value of a certain horse, which, it, was alleged in plaintiff’s complaint filed in said action, belonged to him, and that said defendants had killed by negligently operating an engine and train of cars. The defendants or some of them duly appeared in said action, joined issue upon the facts, and a trial was had upon the merits before said justice of the peace, which resulted in a judgment in favor of the plaintiff for the value of said horse. The defendants duly appealed said cause to the District Court of Box Elder County. After the case had been transferred to and was pending in said court, the defendants filed a motion in said court to dismiss said action upon the sole ground that neither the justice of the peace who had entered judgment nor the district court
The district judge contends that the judgment rendered by the justice of the peace which was appealed from was void because the plaintiff herein in his complaint filed in said action had not alleged the jurisdictional fact required by said section 3685. The question, therefore, is: Does the complaint upon which the judgment in question was based “contain no allegation” of the jurisdictional fact required by the section aforesaid ? If the complaint contains an allegation which would authorize the introduction of evidence upon the subject of the place where the injury to the horse
“The doctrine to be gathered from all the cases is that if the substantial facts which constitute a cause of action are stated in the complaint or petition, or can he inferred hy reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete, and defective, such insufficiency pertaining however to the form rather than to the substance, the proper mode of correction is not by demurrer, nor by excluding evidence at the trial, but by a motion before the trial to make the averments more definite and certain by amendment.” (Italics ours.)
Of course, under our practice, the defective statement would have to be assailed, not by a motion, but by a special demurrer pointing out the defect, and thus require the pleader to cure the defective statement by making it more definite.
The theory upon which the foregoing doctrine rests, and it is the true one, is that a defective or incomplete statement of a material allegation does not constitute a total failure of statement, but it at most is merely a defective or incomplete statement of a material ultimate fact which may always be cured by amendment. Erom this it follows that such a defect is one of form rather than of substance, and, where such is the case, the complaint always supports a judgment. Mr. Pomeroy, however, points out the true and only test which is to be applied under such circumstances, namely, are the allegations of the complaint sufficient when considered together to admit proof of the fact or facts which it is contended are material to sustain a judgment? In applying this test, it is not of controlling importance that the al
But, at all events, in view of all the allegations contained in the complaint, we think it is clear that the plaintiff intended to and did apprise the defendants that he would attempt to prove at the trial that the horse was killed in Box Elder Precinct. ' If the- allegations in this regard were sufficient, and we think they were, to tender an issue upon that subject, then they were not vulnerable to the attack made upon them by the motion to dismiss. The district court therefore had jurisdiction of the case, and it clearly was its legal duty to proceed to hear it upon the merits. We are not unmindful of the rule that in justice courts the jurisdictional facts must affirmatively appear. In determining the question, however, whether the jurisdictional
In view of the conclusion reached, it becomes unnecessary to determine whether a defendant in an action which he has appealed and joined issue, and in which a trial was had upon the merits without any objection on his part that the complaint was defective, may take advantage of the provisions of section 3685x, supra. If a decision of that question is unnecessary in order to decide the case, it would in a measure be mere obiter dicta if we should decide it. We therefore refrain from expressing an opinion upon that subject.
We are of the opinion, therefore, that a peremptory writ of mandate should issue requiring the defendant as judge of the district court of Box Elder County, Utah, to set aside and vacate the order and judgment dismissing the action aforesaid, and to reinstate the same on his trial calendar, and
Rehearing
ON APPLICATION EOB REHEABING.
Defendant’s counsel have filed a petition for a rehearing, in which they insist that we have committed gross error in bolding the complaint passed on sufficient. It is insisted that we have invoked the presumptions applicable to courts of general jurisdiction in favor of courts of limited or special jurisdiction. It seems to us, however, that the zeal of counsel has caused them to overlook or misapprehend the question decided by us. the statute passed on in the opinion makes the question of whether the justice bad jurisdiction of the subject of the action one of fact. Assuming, but not deciding, that the fact that the horse was killed in Box Elder Precinct bad to be established by the plaintiff the same as any other fact necessary to a recovery, bow would this affect the sufficiency of the complaint ? In the following manner, and in no other, namely: Are the allegations with respect to the jurisdictional fact sufficient to admit evidence in support thereof ? Whether they are sufficient is a question of interpretation or construction. From counsel’s contention, it would seem that they insist that language in a complaint may mean one thing in a court of general jurisdiction and a different thing in a court of limited jurisdiction. They perhaps would not concede that this is their meaning, yet it is just what their contention amounts to. We did not bold that in courts of limited jurisdiction their power to adjudicate or determine would be either inferred or presumed. What we held is that a complaint will ordinarily receive the same construction whether filed in a court of general, or in a court of limited jurisdiction, and that the rules of construction in both courts are the same. In other words, what we held is that, if the allegation of an ultimate fact is suffi
The defendants’ petition for a rehearing is therefore denied.
Plaintiff has also filed what by him is termed a “petition, for a rehearing,” but which, in legal effect, is but a request to modify the judgment for costs so far as it applies to the defendants other than the judge of the district court. The question of awarding costs in proceedings of this character was considered by us in the case of State v. Ritchie, 32 Utah 394, 91 Pac. 29. We are of the opinion that, under the rule laid down in that case, plaintiff is entitled